Constitutional Law Commons^™

Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton

Articles

No abstract provided.

Nine Ways To Avoid A Train Wreck: How Title 3 Should Be Changed, Michael J. Glennon

Cardozo Law Review

No abstract provided.

The Unbearable Rightness Of Bush V. Gore, Nelson Lund

Cardozo Law Review

No abstract provided.

Our Supermajoritarian Constitution, John O. Mcginnis, Michael B. Rappaport

Articles

No abstract provided.

System And Lifeworld In Habermas's Theory Of Law, Hugh Baxter

Cardozo Law Review

Jürgen Habermas's recent work on law and democracy divides into two parts. With his "discourse theory of law and democracy," Habermas seeks to explain the conditions under which modern constitutional legal and political orders may claim legitimacy. Here Habermas's method is primarily philosophical and legal-theoretical. The second part of the project - the part on which this article focuses - develops what Habermas calls his "communication theory of society." Here Habermas seeks to "translate" the normative conclusions of his discourse theory into a substantive social-theoretical model. The idea is to determine whether the ambitious normative theory of democracy is plausible …

Knicks-Heat And The Appropriateness Of Sanctions In Sport, Robert L. Bard, Lewis Kurlantzic

Cardozo Arts & Entertainment Law Journal

No abstract provided.

A Constitutional Crisis In The Digital Age: Why The Fbi's "Carnivore" Does Not Defy The Fourth Amendment, Aaron Y. Strauss

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Ambiguity And Income Taxation, Terrence R. Chorvat

Cardozo Law Review

No abstract provided.

Restoring Politics To The Commerce Clause: The Case For Abandoning The Dormant Commerce Clause Prohibition Of Discriminatory Taxation, Edward A. Zelinsky

Articles

No abstract provided.

Popular Sovereignty And The Electoral College, John O. Mcginnis

Articles

No abstract provided.

Solving The Apprendi Puzzle, Kyron Huigens

Articles

No abstract provided.

Committee Of Heads Of Local Arab Councils V. Ministry Of Construction, Dorit Beinisch, Aharon Barak, Yaakov Kedmi

Translated Opinions

Facts: Petition seeking the establishment of egalitarian socio-economic criteria for the implementation of the Neighborhood Restoration Project, and a similar inclusion of Arab settlements, which are ranked under the first and second cluster by the Central Office of Statistics, to the inclusion within the project of Jewish settlements which fall under that same ranking.

Held: In the majority opinion, written by Justice Beinisch, the petition was granted in part as to the requested criteria. The court determined that the petition was made partially extraneous given the drafting of new criteria in 1999, and that the criteria were to be redrafted …

Presidential Review As Constitutional Restoration, John O. Mcginnis

Articles

No abstract provided.

When Is A Parent Not A Parent? On Doma, Civil Unions, And Presumptions Of Parenthood, Mark Strasser

Cardozo Law Review

No abstract provided.

Association For Civil Rights In Israel V. State Of Israel, Itzchak Zamir, Mishael Cheshin, Dorit Beinisch

Translated Opinions

Facts: In this petition, the petitioner, the Association for Civil Rights in Israel, asked the Court to direct the Government of Israel, the Minister of National Infrastructures, and the Minister of Finance to nullify the appointment of some of the representatives on behalf of the Government in the Israel Lands Council and to appoint in their stead, Arabs as members of the Council.

Held: The court analyzed the substance and applicability of the principle of equality and decided that given that the Government is to appoint an additional six representatives on its behalf as members of the Council, the order …

Common Sense, Rationality, And The Legal Process, Ronald J. Allen

Cardozo Law Review

No abstract provided.

Theories Of Uncertainty: Explaining The Possible Sources Of Error In Inferences, Vern R. Walker

Cardozo Law Review

No abstract provided.

Serendipity And Abduction In Proofs, Presumptions, And Emerging Laws, Pek Van Andel, Danièle Bourcier

Cardozo Law Review

No abstract provided.

True Threats: Evolving Mens Rea Requirements For Violations Of 18 U.S.C. § 875(C), Justin Myer Lichterman

Cardozo Law Review

No abstract provided.

Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky

Articles

The Supreme Court generally conditions tax exemptions, deductions, and exclusions for religious organizations and activities upon the simultaneous extension of such benefits to secular institutions and undertakings. The Court's position flows logically from its acceptance of the premise that tax exemptions, deductions, and exclusions constitute subsidies. However, the "subsidy" label is usually deployed in a conclusory and unconvincing fashion. The First Amendment is best understood as permitting governments to refrain from taxation to accommodate the autonomy of religious actors and activities; hence, tax benefits extended solely to religious institutions should pass constitutional muster as recognition of that autonomy.

Gur Aryeh V. Second Television And Radio Authority, Aharon Barak, Shlomo Levin, Dalia Dorner

Translated Opinions

Facts: Petitioners are the subject of a film made by or for the respondents.  The film was designated for broadcast on television on Shabbat.  When the petitioners discovered the film was going to be broadcast on Shabbat they approached the Second Television and Radio Authority, and asked that the film not be broadcast on Shabbat stating that broadcast of the film on Shabbat would harm their religious feelings and violate their religious freedom.  The request was denied by the Second Television and Radio Authority, which was willing to add captions on the screen which would state that the film was …

Local Building V. Holzman, Dalia Dorner, Theodor Or, Eliahu Mazza, Itzchak Zamir, Aharon Barak, Shlomo Levin, Izhak Englard

Translated Opinions

Facts: Two appeals (CA 5546/97 and CA 6417/97) were joined in this case due to the similarity of the legal question they raised.   In both cases the question arose as to the authority to reduce compensation in the expropriation of land for public purposes and in particular the question arose whether a plot of land can be expropriated in its entirety with significant reduction in compensation.

Held: The appeal in CA 5546/97 was dismissed and the appeal in CA 6417/97 was partially affirmed.  In that case the Local Planning and Construction Committee in Haifa was ordered to pay the appellants …

In Defense Of Making Government Pay: The Deterrent Effect Of Constitutional Tort Remedies, Myriam E. Gilles

Articles

Legal economists are concerned with setting optimal deterrence levels. Armed with information concerning the public and private costs and benefits of a particular harmful activity, the legal economist seeks to set a “price” for the activity which, to some socially optimal extent, minimizes external costs while retaining external benefits. If the economist's information is perfect, he can predict precisely how an economically rational actor will respond to a particular price and achieve optimal deterrence of activities whose costs outweigh their benefits.

Carrington, Cooley, Kennedy, Klare, Patrick O. Gudridge

Cardozo Law Review

No abstract provided.

Duncan Kennedy, A Critique Of Adjudication: Fin De Siècle, David Kennedy

Cardozo Law Review

No abstract provided.

Free? Exercise, Marci A. Hamilton

Articles

No abstract provided.

Karsik V. State Of Israel, Mishael Cheshin, Aharon Barak, Tova Strasberg-Cohen, Aharon Barak, Shlomo Levin, Dalia Dorner, Dorit Beinisch

Translated Opinions

Facts: In the late 1950’s the army needed training area and for this purpose the authorities worked to expropriate a range of about 137 dunam of land in the region of Hadera in accordance with the Lands Ordinance (Purchase for Public Purposes) 1943.  After a number of years – on 24 March 1966 – and according to his authority in section 19 of the Expropriations Ordinance, the Minister of Finance published a notice as to the granting of the land to the State and the land was registered in the land registration books in the name of the State.

The …

Weiss V. Prime Minister, Aharon Barak, Izhak Englard, Theodor Or, Eliahu Mazza, Shlomo Levin, Itzchak Zamir, Jacob Turkel

Translated Opinions

Facts: The Prime Minister resigned, and he and the Ministers of the outgoing government continued to fulfill their duties as prime minister and ministers until the new government was to take office. In this framework the outgoing government continued to conduct political negotiations with the Palestinian Authority with the aim of reaching an agreement before the elections.

Held: The majority opinion was written by President Barak. The petitioners claimed that the outgoing government was not authorized to conduct the political negotiation. They asked the court to direct the government to end the political negotiation until the establishment of a new …

Supreme Law Or Basic Law? The Decline Of The Concept Of Constitutional Supremacy, Rett R. Ludwikowski

Cardozo Journal of International and Comparative Law

The article examines the decline of constitutional supremacy in the context of increasing international legal influences and the rise of supranational organizations. It argues that the traditional dualistic view of domestic and international law is no longer tenable, as national constitutions are no longer the sole supreme law. Instead, the legal landscape has become multifaceted, with overlapping national, supranational, and international legal structures. This shift is attributed to the erosion of state sovereignty and the integration of international law into domestic legal systems, even in countries like the United States.

Expedited Hiv Testing: An Unnecessary Test That Is Allowing The State To Trample On A Woman's Constitutional Rights, Sheree Gootzeit

Cardozo Journal of Equal Rights & Social Justice

The note argues that New York's expedited HIV testing for pregnant women is unconstitutional, ineffective, and invasive, violating Fourth Amendment rights and offering no significant benefits over existing laws. It asserts that the testing infringes on privacy, bodily integrity, and informed consent, while alternative methods like urine testing could achieve the same goals without such violations. The analysis emphasizes the need to protect women's rights during vulnerable periods while maintaining public health standards.